The kidnapping of four-year-old Varsha from her school in Trincomalee is a
good starting point for discussing policing in Sri Lanka’s north and east. Jude
Regi Varsha was kidnapped on 11 March 2009 and a ransom demand was made to her
family. The kidnappers were aware that her father was working abroad, on the
basis of which a sum of Rs 30 million was demanded. While the family was trying
to come up with the money, Varsha’s body was found in a gutter of Trincomalee.
The incident shook the people of the area and there were even strikes led by
family members. What happened next was also a reflection of policing in the
area: three persons were arrested, and when all three of them were found dead,
the story published was that they were killed while attempting to escape from
police custody. It was commonly understood that the three were summarily
executed. Whether they were the actual kidnappers or not will never be known.
Subsequently, the kidnapping was reported to be organized by political groups
established during the civil war.
Military factor
The issue of policing in the country’s north and east is being raised after
one of the most intense military conflicts to have taken place in Sri Lanka.
Through the Sri Lankan army, the government engaged in a military conflict for
nearly 30 years with Tamil rebels, whom eventually came under the leadership of
the LTTE. For some time towards the end of the conflict, the Sri Lankan
government lost control of the northern and eastern parts of its territory to
the LTTE. The north was under the control of the LTTE for a longer period than
the east, and was used as a military ground to fight against the government.
There was hardly any civilian policing there at the time, with the sole,
overreaching aim being complete control of the territory. Subsequently, after
intense battles which went on for some time, the north came under the control of
the Sri Lankan armed forces.
According to the assessment of international experts, since then there has
been no return to a conflict free environment. Internal stability and control of
the area by a civil administration has not yet taken place, with the
concentration of internally displaced persons in camps continuing to be a major
concern. Political control has been achieved to some degree through what were
local paramilitary groups in the past, which have now become major political
parties in the east.
Issues such as land mines and the possible existence of remaining elements of
the LTTE are used in mainstream political propaganda to justify the delay in
returning to normalcy. It is not clear how long de-mining or counterinsurgency
controls will take to be over. In all likelihood, the government will claim more
time is needed for a return to stable conditions due to the political climate.
Under these circumstances, it is the military who has effective control of
the area. While certain elements of this control are being relaxed, such as the
monitoring of movement through security roadblocks and check points, any
significant shift to civilian control depends on political will.
Policing within the area is then also primarily determined by the military.
For this reason, police officers are perceived by citizens to be nothing but an
extension of the military. Any attempt to reestablish civilian policing would
require not only complete separation between the police and military
departments, but also a vote of confidence from the people before they would
accept the policing system as a civilian one. There has been little discussion
on how this can be achieved, even though this is a critical question.
New political groupings
It is well known that paramilitary groups of various political colorings
within the area are also holding arms. Although there have been public
declarations about the clearing of weapons held by these private groups, this
has obviously not been achieved. Again, without achieving this objective the
very idea of a return to civilian policing is impossible. The first precondition
of the establishment of a policing system under the rule of law is that all
holding of arms by civilians must end. Whether the state has the intention and
capacity to bring this about will be tested in the time to come.
The recognition of the supremacy of the law is a critical problem in the
establishment of a civilian policing system in Sri Lanka’s north and east. All
such legal traditions were destroyed during the protracted military conflict.
The reestablishment of the supremacy of law and the repositioning of the
criminal jurisdiction around the country’s criminal laws and procedures will
remain key in determining the kind of policing that will emerge in the future.
Rule of law problems
Some initial steps are being taken to reestablish courts and make them
function as they did in the past. It is not clear what kind of resources and
personnel are being devoted to this project however. The effective
reestablishment of the court system will require a considerable amount of
financial and human investment. The government needs to clearly state the extent
of its financial investment in setting up courts, as well as how they will begin
to function; their mere creation will not help the cause of criminal justice in
the country, unless they are accompanied by effective and competent judges and
magistrates. The establishment of courts in the area is hence also a
precondition for the development of policing.
Even the establishment of courts however, is greatly restricted by the grave
situation of rule of law in the country. Throughout Sri Lanka there is a major
rule of law crisis, which has been admitted by everyone for quite some time.
Despite this, nothing significant has been done to remedy the situation. Any
steps to be taken in the unstable regions will depend greatly on the most stable
area of the country not under military conflict, the capital of Colombo and
southern Sri Lanka. These areas are themselves in need of radical reforms before
they can be said to adhere to a rule of law framework.
In summary, strengthening overall judicial independence and authority
throughout the country, as well as establishing the rule of law in the policing
system in the south, are major prerequisites for the development of rule of law
institutions in the north and east.
Crisis of public institutions
Sri Lanka’s crisis of public institutions is part of the national and
international debate, as reflected in recent times by what happened to the
implementation of the 17th Amendment to the country’s constitution. The
implementation of the 17th Amendment was discontinued from about 2006 by the
failure to appoint the required Constitutional Council. As a result, the
commissioners to be appointed by the Constitutional Council could not be
appointed. This led to the discontinuation of the National Police Commission,
among other institutions, which in turn led to a major crisis regarding
promotions, appointments, transfers and disciplinary control within the entire
policing system.
The major accusation against the country’s policing system is its
politicization, whereby the entire system is under the control of the executive
president. This means that appointments, transfers, disciplinary control and all
other matters relating to the police are directly controlled by the executive
president, who, it is assumed, makes decisions in the best interests of his
political party rather than in the interests of the nation. For meritocracy to
become the basis of all such appointments and decisions, a provision similar to
the 17th Amendment needs to be brought into operation. This is unlikely however,
in a situation where the executive presidency—a system similar to absolute
monarchy in feudal times—is in existence. This system conflicts with the
emergence of any independent national institutions under the rule of law.
Executive presidential system
The executive presidential system existing in Sri Lanka is responsible for
the country’s major rule of law crisis. It has affected rule of law in the
stable south, and will likewise affect the north and east. It is not possible
for any legal or constitutional amendment, including the 13th Amendment, to
overcome the problem of the executive presidential system, which operates for
the entire country; whatever legal institutions may come even if the provisions
of the 17th Amendment are implemented would be subjected to the overreaching
control of the executive president. In all likelihood, any measure incompatible
with the executive presidential system would be subjected to the same fate as
the 17th Amendment. It is therefore not possible to imagine any significant
police reform within Sri Lanka, whether in the south, north or east, while the
executive presidential system remains in place.
Training a new generation of police
officers
From the standpoint of language and culture as well as rational
administration, it is necessary that there should be a large number of Tamils to
engage in policing work in the north and east. The recruitment and training of
such a large group of persons from the Tamil community would not be an easy task
however. Firstly, these persons must be confident that policing in the region
can be done without fear to their lives. Fear is the most prominent emotion
prevalent within the region today, the result of the hardships faced from both
the rebels and government forces over a long period of time.
There is also the fear of the new political generation that has arisen in the
region. Anyone going against these new politicians runs a risk to their lives,
under which circumstances it is almost impossible for young police officers to
be confident that they can enforce the law without favoritism. Such confidence
in future generations is critical if effective policing is to take place in the
region.
These policemen would moreover need to be given police training within a rule
of law system. Again, if Sri Lanka’s overall policing system is not on par with
that of one under a rule of law framework, then what chance is there for this
new generation of policemen to competently address law and order issues within
the region?
Furthermore, the new generation of policemen will serve under the political
leadership developing in the region, which makes it unlikely that the new police
cadres would have the opportunity to progress as a policing unit with the
required qualities needed to create a climate of peace, law and order.
For these reasons, the mere discussion of the adoption of the 13th Amendment
and the granting of special powers to the region will not resolve the key
problems hindering the development of a policing system needed to transform this
region into a peaceful zone.
Printer Friendly Page 